MAHADEO THAKRE Vs. CHANCHAL GAIKWAR

JUDGEMENT

(1.) The applicant/husband is aggrieved by the order passed by the Additional District Judge, Gariaband, District Raipur, rejecting the applicant's objection regarding maintainability of the proceeding only under Section 27 of the Hindu Marriage Act, 1955 (henceforth 'the Act').

(2.) The parties to this revision application were married on 7-5-1998. It is not in dispute that on the application preferred by the applicant/husband, an ex parte decree of divorce has been granted in his favour by the 5th Additional District Judge, Bilaspur, vide its judgment and decree dated 7-2-2002 in Civil Suit No. 115-A/2000. The non-applicant/wife, being ignorant of the said ex parte judgment and decree, moved applications, one under Section 13 of the Act on or about 20-7-2005 and another under Section 27 of the Act, both before the Principal Judge, Family Court (Additional District Judge), Raipur (Annexure P-1). However, when the applicant/husband disclosed the fact that the Bilaspur Court has already granted an ex parte judgment and decree in his favour, the applicant appears to have raised an objection regarding maintainability of the proceedings under Section 27 of the Act on the ground that since the non-applicant has withdrawn her prayer for grant of decree of divorce and has restricted the proceeding only for return of the property gifted to the couple at the time of marriage under the provisions of Section 27 of the Act, the proceedings is not maintainable. The Trial Court has rejected the said prayer of the applicant.

(3.) Learned Counsel for the applicant has raised two-fold arguments; firstly, that when the initial suit under Section 13 of the Act itself was not maintainable, prayer for return of property under Section 27 of the Act which is of an interim nature was not maintainable; secondly, that even if that application was maintainable, the Court at Gariaband has no jurisdiction to entertain the application, because by granting the application under Section 27 of the Act, the effect would be to amend or modify the decree of divorce granted by the Court at Bilaspur, which is not permissible.